Thursday, April 10, 2014


DUI victim struggles to get life back on course, as told to San Diego MADD, lawyers report

Her fear of being judged by a room full of police officers at a San Diego County Mothers Against Drink Driving MADD awards luncheon was short lived.

It was trumped by courage and the wall-to-wall love and support for the young woman in her 20s as she walked up to the lectern. Her handless left arm was dangling along her side.
She had been the victim of a drunken driver. She is now determined to get her message out: drinking and driving doesn’t just kill — it also maims its victims, as it did her. 
Jessica Creed has been waging an uphill battle to survive since the May 2013 DUI crash. Most of the near 300 officers in the auditorium had followed her recovery in and out of the hospital. Many were responsible for hundreds of DUI arrests throughout the current year. For much of 2013, Jessica was in shock and disbelief over her lot in life that derailed her career plans. 
I had flown down to the Southland to see our youngest son being honored with a litany of credits for his continuing support for MADD. Tim had a page in the luncheon program that cited his accomplishments.
It was a proud day for this dad to see a son recognized for his continuing efforts to serve and protect in a job with many challenges and often too little sleep. He has truly gone above and beyond in supporting MADD on his own time over the 14 years he has served as an officer. Tim stands behind their drive to reduce the slaughter on the roadways due to drinking and driving.
I will never forget how very distraught he was early in his career when he was dispatched to a crash where an elderly woman was trapped in her vehicle and mortally injured. Using his baton he tried to bend the door frame open, but to no avail, in attempting to rescue her. Creed drew a lengthy standing ovation from her audience after telling of the long physical and psychological, and emotional journey toward recovery. That included learning how to talk and walk all over again having spent more than three months in the hospital. 
She had a broken jaw, broken hand, broken sternum, broken pelvis in two places, lacerated liver, broken vertebra and a smashed face that allowed her only to make use of sign language to communicate with her family and medical personnel. 
The 30-year-old suspect in the DUI crash was arrested and released from custody. Since then he has failed to answer to charges twice along and has been charged for being drunk in public. He is currently considered a fugitive from justice. 
Creed has developed a site on Facebook attempting to create more of an awareness of the traumatic results of drinking and driving and how it derailed the future of an energetic young woman who had intended to become a nurse. Although a little difficult to contain her composure at times, she is continuing to speak to other groups about her traumatic near death experience hoping some will listen and avoid the hell she has gone through. Her Facebook site is – “a cause for awareness.” 
“I couldn’t walk, talk, bathe myself, use the bathroom without assistance or use either of my hands going through some 15 surgeries because of this man’s (DUI) crime. It’s not easy to be a victim but it is even harder to be a survivor having to be strong, move forward and not let the pain, hurt and sorrow control your life,” she said. “The many hours I have spent reflecting (on my future) one thing is clear: whatever I do, I will be successful.” 
She thanked the officers who had been intently listening to her story. It was so quiet you could hear the proverbial pin drop. 
“Being a police officer is a pretty thankless job from my understanding,” Creed said. “But, for me I could not give enough thanks for all that you do. Each drunk driver that you arrest on our roads helps prevent another person from having to experience what I have experienced. It’s men and women like yourselves that offer survivors like me closure and offer the would-be survivors renewed happiness in their own lives.” 
She closed with: “From the bottom of my heart, thank you!” 
A foundation has been created to assist Jessica and her family with medical bills.  Go to Facebook under Jessica Creed Foundation for more information.

Tuesday, April 08, 2014


Dr. Joe Citron pleads no contest to perjury after inflating his DUI expert credentials, say Georgia drunk driving attorneys

San Diego DUI lawyers are familiar with Dr. Joe Citron.  Apparently he may have exaggerated some of his DUI expert credentials, San Diego attorneys are told:

A Georgia eye doctor pleads no contest in Lancaster County Court to nine counts of perjury.  Dr. Joseph Citron, of Atlanta, lied about his credentials as a drunk driving expert in DUI trials in Dauphin, Lancaster, Lebanon, Centre and Clinton counties between March 10, 2010 and March 16, 2012.
During questioning concerning his qualifications, Dr. Citron, who is an ophthalmologist, testified that he was an instructor at the Georgia Public Safety Training Center, training police officers in the area of first responder and SFST for approximately 10 years.  He also testified that in 2000 Georgia Governor’s Officer of Highway Safety appointed him to a program called “Drunk Busters.”  He also testified that as part of the “Drunk Buster” program he went around the state reviewing SFSTs with various police departments.
The Lancaster County District Attorney’s Office began an investigation in Dr. Citron’s alleged credentials.  County detectives requested the assistance of the Georgia Bureau of Investigation in determining what if any affiliation Dr. Citron had with GPSTC and the alleged “Drunk Buster” program.  It was determined that Dr. Citron was never part of the faculty at GPSTC in the area of SFST. Rather Dr. Citron was a guest lecturer at the GPSTC Fire Academy with respect to eye injuries as part of a first responder course.  He was also never used to teach SFST to police officers at GPSTC.
During a recorded interview, Dr. Citron admitted that he inflated his credentials in the area of SFST because it “sounds good.”  He further admitted that the Governor never contacted him to be part of a “Drunk Busters” Program, but did provide a contact to verify the program’s existence. That individual informed investigators that the two speeches he did invite Dr. Citron to assist in were never referred to as “Drunk Busters,” and it was never presented as part of a Governor’s Office program.
At the conclusion of the joint investigation it was determined that Dr. Citron testified falsely to his involvement with GPSTC and the “Drunk Busters” Program in order to qualify as an expert in SFST and bolster his credibility on that topic. Both portions of testimony were material to his qualifications to render an opinion regarding SFST, as well as his potential defense bias. As a result, officials in Dauphin, Centre, Clinton, Franklin, Lancaster, and Lebanon Counties all charged Dr. Citron with Perjury and related offenses.
In Lancaster County Court this morning, Dr. Citron plead no contest to nine counts of Perjury, nine counts of False Swearing, and one cojnt of Unsworn Falsification.  Dr. Citron was sentenced to the Intermediate Punishment Program for a period of 7 years, with the first 60 days to be served on house arrest with electronic monitoring. He was also ordered to pay fines totaling $1,000.00 and the costs of prosecution.

Read more:

Saturday, April 05, 2014


Video of man stopped at DUI checkpoint who refuses to answers questions and is allowed to leave

Check this out.  Guy gets stopped at Boulder Colorado PD DUI checkpoint.

Refuses to answer any questions.  (Must have got some good advice from a San Diego California DUI attorney.)

Gets one cop after another to identify himself or herself with personnel number.

Each cop answers.

They keep asking him if had anything to drink.  He refuses to answer.

He asks if he is free to go.

Finally he's told he can go and to have a nice night, sir.

Here's a list of San Diego California DUI checkpoints posted by attorney Rick Mueller.

Sunday, March 30, 2014


Del Mar Drunk Driving Hit & Run leads to San Diego DUI arrest and manslaughter charges, lawyers are told

Bad, sad news out of Del Mar San Diego California this weekend, say San Diego DUI lawyers.  One death, one drunk driving arrest, say San Diego DUI attorney Rick Mueller.  Here's the report:

A forty-one year old man allegedly did not stop at a stop sign and hit a lady crossing the street. He has been arrested on suspicion of vehicular manslaughter in the death of a 27-year-old woman who was killed in a hit-and-run crash in Del Mar, say San Diego DUI attorneys.

Rachel Anne Morrison and a friend were walking eastbound in a crosswalk at the intersection of Camino Del Mar and Coast Boulevard about 10:15 p.m. Friday when Christopher Stockmeyer, 41, allegedly ran a stop sign and struck her at a high rate of speed, according to sheriff's officials and the county Medical Examiner's Office.  Fortunately, the other pedestrian was able to get out of the way.

Morrison, of Encinitas, was taken to Scripps Memorial Hospital La Jolla where she was declared dead shortly after arrival, according to the Medical Examiner's Office.

The driver alegedly fled the scene, authorities said. Sheriff's deputies and San Diego police used evidence left behind after the crash to locate the vehicle and Stockmeyer, its registered owner, at an apartment complex in La Jolla.

Stockmeyer was subsequently arrested and booked into the Vista Detention Facility on suspicion of felony drunken driving, felony hit and run and vehicular manslaughter, according to sheriff's officials and jail records.

Friday, March 28, 2014


California Highway Patrol looking for San Diego DUI suspect who caused woman to lose arm, say lawyers

News Release - San Diego DUI suspect hunted, attorneys say.

San Diego, California.

CHP is asking for your help to find a local musician who seriously injured a woman in a San Diego DUI crash, then failed to show up in court.

The CHP says Daniel Castro was arrested on DUI charges after the accident last May. He posted bond, but officials say he failed to show up for a recent court appearance. Now there's a $600,000 warrant for his arrest.

According to the CHP, Castro was driving the wrong way on the I-5 freeway near First Avenue when he drove head on into a 28-year-old woman. Officials say the woman was so seriously injured she lost her arm.

Castro played keyboard in the local band Long Live Logos.

He is described as five foot four inches tall, 150 pounds, with brown medium length hair. Anyone with information is urged to call the CHP.

Tuesday, March 25, 2014


San Diego DUI cops are all over St. Patrick's Day party-goers, California lawyers report.

San Diego DUI California lawyers report an uptick in DUI and Zero Tolerance (.01%) arrests/detention.  San Diego County DUI Law Center defends these types of actions so contact your California DUI attorney today for help.

 San Diego County Sheriff's Department, Escondido Police Department, La Mesa Police Department, and UCSD Police Department conducted San Diego & California DUI Saturation Patrols during the evening of St. Patrick's Day in the following cities:  San Diego, San Marcos, Solana Beach, Del Mar, Encinitas, Escondido, Imperial Beach, La Mesa, Poway, and Vista.

Of the 14 San Diego DUI California Deputies and Officers working one night, they made 121 traffic stops. They evaluated 35 drivers for driving under the influence of Alcohol and/or Drugs. There were four people arrested for San Diego DUI where Alcohol was involved and two people were arrested for DUI where Alcohol and Drugs were involved.

There were seven drivers cited for driving without a driver's license. The focus of the San Diego DUI operation was the apprehension of suspects who were determined to be operating a motor vehicle while intoxicated and/or under the influence of drugs.

These San Diego DUI saturation patrols were funded by a grant through the California Office of Traffic Safety.

"Report Drunk Drivers. Call 911" is what police keep saying.

Tuesday, February 25, 2014


5 to 20 years in state prison for DUI death near the Strip, San Diego DUI attorneys report

A San Diego man, Edris Ghani, was ordered to serve 5 to 20 years in state prison for DUI death and causing a fatal crash near the Las Vegas Strip that killed a woman celebrating her 21st birthday with her mother, San Diego DUI lawyers report.
Mother Cynthia Konarski related the story during sentencing Monday for 35-year-old drunk driving defendant in Clark County District Court.  She explained how the 4 a.m. crash in December 2010 killed her daughter, Christina Konarski, and left her with a paralyzed arm.
DUI Police report the mom and daughter were stopped at a traffic signal on Tropicana Avenue when a speeding Mercedes-Benz CLS550 rear ended their Mercury Sable.
Ghani and his passenger escaped serious injury.  Ghani pleaded guilty in October to DUI causing death or substantial bodily harm.  No comments were published by his drunk driving criminal defense attorney.

Monday, February 24, 2014


Passed field tests and still arrested for DUI is ok in one state other than California, attorneys note

Field sobriety tests are voluntary in California DUI cases, say San Diego lawyers.
Yet most San Diego DUI police get suspected drunk drivers to do FST's, remind San Diego DUI attorneys. What is the real value of FST's?
What if someone did well on them, should he or she still be arrested for DUI?

Well, the Tennessee Supreme Court addressed this latter issue when it
decided on Thursday that the only use for roadside sobriety tests is to
collect evidence against motorists, using them to convict individuals for
driving under the influence of alcohol (DUI). The high court justices
overturned an appellate decision from 2012 that found a driver who passed
six of the tests with flying colors should never have been arrested. David D. Bell
was arrested on May 13, 2009, even though the trial judge found no evidence
of impairment in the sobriety tests when he reviewed the dashcam footage.

"I honestly think that he did pretty dog-gone good on the field sobriety
tests, better than most I've seen," Sevier County Circuit Court Judge Rex
Henry Ogle observed. "I couldn't pass them as well as he did."

On that early morning in 2009, Bell had stopped by the The Roaming Gnome Pub
and Eatery located in Sevierville and had a few drinks. He made a mistake
and ended up on the wrong side of the road when Sevierville Police Officer
Timothy Russell came upon him. On the roadside, Bell performed the
four-finger count, recited the alphabet from G to S, and identified for
Officer Russell in what year he turned six. Officer Russell rated his mental
acuity as "excellent. " Bell also passed the one-leg stand and the
walk-and-turn test. 

Despite the performance, Officer Russell decided to arrest Bell. Bell moved
to suppress the evidence against him, arguing that there was no probable
cause for his warrantless arrest. Seeking a conviction, the Supreme Court
justices looked to several other states for sympathetic rulings.

"We recognize that not all courts that have addressed this question have
reached the same conclusion as the Delaware Supreme Court, the Alaska Court
of Appeals, the Minnesota Court of Appeals and the Pennsylvania Commonwealth
Court," Justice William C. Koch Jr wrote. "However, we have determined that
the approach employed by these courts is entirely consistent with our
holdings that determining the existence of probable cause to support a
warrantless arrest is not a technical process. Rather, it is a process
requiring reviewing courts to conduct a common-sense analysis of the facts
and circumstances known to the officers at the time of arrest... we find
that performance on field sobriety tests is but one of the many factors
officers should consider when deciding whether to arrest a motorist for DUI
or similar offenses without a warrant."

The justices reasoned that under the totality of circumstances, passing the
sobriety tests is insufficient to cancel out the effect of other indications
of intoxication, including the smell of alcohol and a traffic violation. For
this reason, the court reversed the lower court findings and agreed with
prosecutors that Officer Russell had probable cause to arrest Bell for DUI
and ordered the charges to be reinstated against him. The justices noted
that Bell may use his performance on the sobriety tests to raise reasonable
doubt of his guilt at trial.

Tuesday, February 18, 2014


Pacific Beach area in San Diego "DUI - dangerous" warn California drunk driving attorneys

Stay away from DUI checkpoints in Pacific Beach San Diego California, DUI lawyers posting relevant Google map locations say.  It is dangerous for many reasons, warn San Diego dui attorneys.

One San Diego DUI driver and another motorist were hospitalized following a two-car drunk driving crash on Interstate 5 near Mission Bay yesterday when a small, Mini-Cooper and a Ford Fusion crashed in the northbound lanes north of Clairemont Drive shortly after 8:30 a.m., according to the California dui lawyers.

The Mini Cooper overturned in the center divider, and the other vehicle temporarily blocked one lane and at least one of the two people taken to Scripps Mercy Hospital after the crash sustained major injuries, according to San Diego dui attorneys.

Sunday, January 26, 2014


Social host busted after 911 call leads to underage drinkers, say San Diego DUI lawyers

A number of San Diego DUI arrests begin with a 911 call, attorneys remind.  The police have an obligation to go to a house where a 911 call originated from, if they think a criminal act may be going on or someone is in need of assistance, say San Diego California DUI lawyers.

Yesterday, here's how someone got busted in North San Diego County.

On January 25th, at about 2245 hours, the Sheriff's communication center received a 911 call from an un-identified female who provided an address of 1420 Borden Road, in San Marcos and was heard crying before the line disconnected. The female did not provide additional details regarding why she called 911. Deputies responded to the location in order to check the welfare of the female.

Upon arrival, deputies determined a large party was taking place at the residence. A male who was later identified as 23 year old Jason Gonzales opened the door and identified himself as the host of the party. Gonzales was involved in a physical altercation with deputies and was ultimately placed under arrest for a social host violation and resisting an officer with force.

Several underage party goers were also arrested for social host violations after they were determined to be intoxicated.

Thursday, December 05, 2013


Dog barely survives San Diego DUI accident, attorneys share

Dog lovers will hate this story.  It's about a San Diego DUI driver who hit a nice dog, lawyers are told.   Lots of medical work later, the dog survived is the good ending, San Diego DUI attorneys suppose.  You can help with the medical bills by using the email below.

 The five-year-old American bulldog struck by a car driven by a suspected San Diego drunk driver in Vista will undergo a leg amputation, the dog’s owner and roommate mentioned last night.
The car plowed into a doghouse where the bulldog, “Lucky,” was sleeping. He suffered a badly fractured hip and back right leg.

An x-ray shows Lucky's badly fractured bones. 

The crash occurred about 10:20 p.m. at the home on Foothill Drive near Huntalas Lane, said resident Jason Salazar, 34, who is the dog owner’s roommate. Salazar said he, owner Jason Ehrengruber and another roommate were home. “We heard a huge screeching and a huge boom like an explosion happened,” he said.
They ran outside and saw the car, a Ford Focus, had slammed through a wooden fence and into the dog shelter. “The doghouse was blown up,” Salazar said.
The woman driving and a man in the front seat were just starting to stumble out of the car, he said.
Salazar said everyone’s first concern was Lucky and another dog, a boxer named Ryder, because they were nowhere to be found.
“We thought the dogs were dead,” he said.
Ryder showed up a short time later at the front door with a ripped-off toenail. Lucky was found a few minutes later further back on the 2-acre property shivering and standing on three legs. The roommates scooped him up with a sheet and took him to an emergency veterinarian.
The driver was identified by authorities as Nadine Cardoza, 41, of Vista. Officers at the scene said she was “extremely intoxicated,” said CHP Officer Jim Bettencourt. She was arrested and booked into jail on a drunken driving charge.
Salazar said the woman tried to run, and her passenger offered the men money to give him a ride home.
On Wednesday night, Lucky was at California Veterinary Specialists in Carlsbad, where he would undergo surgery, Ehrengruber and Salazar said in an email.
They researched the possibility of having Lucky fitted with a prosthetic leg, but determined it would not be a good idea because of the risk of infection and other concerns.
The roommates have set up an account to help defray surgery costs. Salazar said the operation could cost from $8,000 to $12,000. So far, they have raised about $5,600, he said.
“The generosity of the people of San Diego is overwhelming,” Salazar said.
Anyone wishing to donate funds for Lucky’s recovery can get information by sending an email to

Saturday, November 30, 2013


San Diego DUI defendant with breath test of .08% may argue that the particular breathalyzer malfunctioned or was improperly calibrated or used, but cannot challenge the overall reliability of such tests, San Diego DUI attorneys retweet Union Tribune story

The San Diego Union - Tribune reports this San Diego California DUI attorney story:

"Kudos to San Diego City Attorney Jan Goldsmith for aggressively pursuing a drunk-driving case all the way to the California Supreme Court — and saving the breath test in the process.
The high court heard the case on appeal by Terry Vangelder, arrested on suspicion of driving under the influence in 2007 after a Highway Patrol sergeant clocked him at 125 mph on state Route 163.
Breath tests put Vangelder just above the legal blood alcohol limit, leading to a guilty verdict at trial. But because the judge refused to allow defense experts to testify that breath alcohol readings may inherently be inaccurate, an appellate court in 2011 reversed the decision.
Goldsmith appealed and, in a unanimous decision written by Chief Justice Tani Cantil-Sakauye, the high court held that a defendant whose breath test exceeds the 0.08 blood alcohol limit may argue that the particular breathalyzer malfunctioned or was improperly calibrated or used, but cannot challenge the overall reliability of such tests.
Letting the appeals court ruling stand would have undermined one of the key mechanisms of California’s battle against drunken driving. And Goldsmith, whose office last year prosecuted 5,550 DUI cases with a 99.3 percent conviction rate, is to be commended for recognizing the importance of the precedent involved in this case.

Tuesday, November 26, 2013


3 DUI Arrests for Poway Road drunk driving checkpoint, San Diego DUI lawyers say

One way to avoid a San Diego California DUI roadblock or checkpoint over the holidays is to click on this free location site, San Diego DUI attorneys know.

Lawyers now tell about this San Diego California DUI roadblock or checkpoint began 8:00 p.m. on Saturday, and ended 2:30 a.m. Sunday, November 24, 2013. Deputies from the San Diego County Sheriff’s Department, Poway Station, conducted the DUI/Driver's License San Diego California DUI roadblock or Checkpoint for eastbound traffic in the 12000 block of Poway Road approaching the intersection of Oak Knoll Road, in the City of Poway.

During the DUI/Driver's License San Diego California DUI roadblock or Checkpoint, a total of 1193 vehicles passed through the checkpoint, with 609 of the vehicles being screened in the primary inspection area. Twenty vehicles were sent to the San Diego California DUI roadblock secondary screening area. Sixteen of those drivers had their license status checked. While checking the license status of one driver, deputies determined the man had a felony arrest warrant issued in Riverside County for possession of illegal drugs.

San Diego California DUI roadblock Deputies evaluated four drivers for impaired driving. Out of those four, deputies arrested three individuals for driving under the influence of an alcoholic beverage and they were booked into jail.

Deputies issued four citations to drivers who were driving without a valid driver's license; additionally, one driver was issued a citation for driving on suspended license. Deputies towed five vehicles from the checkpoint. Drivers who did not have a valid driver's license, and were able to provide a licensed driver to drive their vehicles from the checkpoint were allowed to do so, as per California Assembly Bill AB353.
The California Office of Traffic Safety funded this San Diego California DUI roadblock or checkpoint, lawyers say.

Thursday, November 21, 2013


Attorneys' Breath Test DUI Defenses in San Diego California after Van Gelder

San Diego DUI lawyers got hit with a slight blow when California decided Van Gelder.

But attacks on breath tests are not gone, suggest San Diego California DUI attorneys.

San Diego California DUI attorneys can still specifically attack the individual machine and procedures.

The 15 minute continuous observation period prior to breath testing remains a top attack if available, as this is scientifically foundational says Van Gelder.

GERD remains viable since GERD introduces stomach gas, not lung air to the machine.

Occupational Exposure remains an issue because the machine is reading and reporting substances other than ethanol.

Hypoglecimia and diabetes are not ethyl so they may be factors.

Auto-brewery is viable because it is not manufactured; it is consumed.

Friday, November 15, 2013


Reckless Driving Alcohol-related is not a DUI in California regardless of what the alcohol program says, remind San Diego DUI lawyers

San Diego Client convicted only of reckless driving, alcohol related (California Vehicle Code Section 23103 per 23103.5) just told me tonight that the learned folks at the alcohol program are telling everyone that regardless of the reduction from the San Diego DUI to this charge, DMV will consider it a DUI for 10 years.

Not true, California DMV, say San Diego DUI lawyers.

Vehicle Code 23152a (DUI) will not up on your DMV record if you were convicted of the above 23103 per 23103.5.  DMV printouts likely will not even show 23103.5 as the printout takes the .5 out and shows only 23103.  So instead of reckless driving, alcohol-related, it shows as plain old reckless driving unless you can also read the capital code letter representing the alcohol portion, San Diego DUI attorneys explain.

What the alcohol program people may mean is that for the next 10 years, this reckless driving charge can be used as a prior DUI for purposes of making the new offense a 2nd offense, possibly meaning enhanced penalties and punishment.

If, after completion of the 3 year probation period, one can file a petition to dismiss (expunge).  That means employers cannot even ask about the initial DUI charge or subsequent plea bargain / conviction.

And if it is dismissed, DMV should update its records.  So the reckless driving does not automatically remain on one's record for 10 years (although it remains priorable).

Do not believe everything you hear at alcohol programs.  These are not taught by attorneys, San Diego DUI lawyers remind.

Tuesday, November 12, 2013


Dwayne Bowe, who was arrested late Sunday night on charges of speeding and possession of a controlled substance, say San Diego DUI attorneys

San Diego DUI lawyers are told the KC Chiefs have not lost a game 
(unlike San Diego DUI attorneys who lose drunk driving cases all the time).

Now a possible DUI/Speeding/Marijuana case hits the California DUI
lawyer radar:

ESPN's Ed Werder doesn't expect the Chiefs to discipline Dwayne Bowe, who was arrested late Sunday night on charges of speeding and possession of a controlled substance, until the case is resolved.
Bowe will be in the lineup for Sunday night's AFC West showdown between the 9-0 Chiefs and 8-1 Broncos. Bowe is coming off his best game of the season in which he registered season-highs in catches (7) and yards (67). That tells you all you really need to know about Bowe's fantasy prospects. He's a WR3/4.

Sunday, November 03, 2013


1 San Diego DUI misdemeanor and 1 San Diego DUI Felony arising out of serious accident, lawyers report

San Diego DUI accidents can result in either misdemeanors or felonies, sometimes one of each, as shown below say San Diego DUI attorneys.  Both drivers will need the services of San Diego drunk driving criminal defense lawyers.

SAN DIEGO vehicles driven by 2 men allegedly under the influence of alcohol collided Sunday morning, causing serious injuries, a police officer said.
The collision occurred just after 1 a.m. at 17th and G streets, said San Diego police Officer David Stafford.
A 53-year-old man drove a Dodge Dakota pickup truck southbound on 17th Street in front of a 24-year-old man in an Acura Integra who was eastbound on G Street when the two vehicles collided, Stafford said.
The 53-year-old man suffered a broken back and broken ribs, the officer said.
The 24-year-old man suffered fractured vertebrae and a fractured sternum. Both were transported to trauma centers for treatment of non-life threatening injuries, he said.
The Dakota driver will be booked on suspicion of felony DUI, Stafford said. The Acura driver will be booked on suspicion of misdemeanor DUI.

Tuesday, October 22, 2013


Brown knocks out Davis, say San Diego California DUI lawyers


Case No. 13-po-01557


2013 U.S. Dist. LEXIS 147352

October 11, 2013, Decided
October 11, 2013, Filed

COUNSEL:  [*1] Cedric S Brown, Defendant, Pro se, Landover, MD.

For Cedric S Brown, Defendant: Susan M Bauer, LEAD ATTORNEY, Office of the Federal Public Defender, Greenbelt, MD; Maggie Grace, Venable LLP, Baltimore, MD.

For USA, Plaintiff: Hollis Raphael Weisman, Jane F Nathan, LEAD ATTORNEYS, Office of the US Attorney, Greenbelt, MD.

JUDGES: Thomas M. DiGirolamo, United States Magistrate Judge.

OPINION BY: Thomas M. DiGirolamo


In Missouri v. McNeely, 569 U.S.    , 133 S.Ct. 1552, 185 L. Ed. 2d 696 (2013) the Supreme Court held that the natural dissipation of alcohol in the bloodstream does not establish a per se exigency that suffices on its own to justify an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases. Rather, that exigency must be determined case by case based on the totality of the circumstances. McNeely, 133 S.Ct. at 1556. The Supreme Court issued its decision on April 17, 2013. Three questions are presented in this case:
1. Should the decision in McNeely be applied retroactively to the facts of this case?
2. Did the taking of the defendant's blood for testing constitute a violation of his Fourth Amendment rights?
3. If there was a violation  [*2] of the defendant's Fourth Amendment rights, should the results of the blood test be excluded at trial?

On November 21, 2012 at 11:02 p.m., U.S. Park Police Officer Lisa Marie Weisbaum was patrolling the Baltimore-Washington Parkway, a federal highway located in the State of Maryland and within the special maritime and territorial jurisdiction of the United States. Officer Weisbaum noticed a blue Dodge Intrepid traveling ahead of her in the left lane. She observed the vehicle cross over the white fog line separating the left travel lane and the shoulder, and then swerve back into the left lane. Her radar unit indicated that the vehicle was travelling 72 mph in a 55 mph zone. Officer Weisbaum activated her emergency equipment and stopped the vehicle. She found the defendant to be the driver and sole occupant. Officer Weisbaum detected an odor of alcohol coming from the vehicle. She also noticed that the defendant's eyes were red, bloodshot and watery. In response to the officer's questions, the defendant stated that he did not have anything to drink, that he was coming from work, and was on his way home. Officer Weisbaum then asked the defendant to step out of the vehicle so that  [*3] she could administer field sobriety tests. Once outside the vehicle, the defendant had difficulty standing and had to use his car for support. He nearly stumbled into the travel lane. Officer Weisbaum detected the odor of alcohol coming from the defendant's person once he was outside of the vehicle. Because of the close proximity of the defendant's car to the travel portion of the highway and the defendant's instability, Officer Weisbaum administered just one field sobriety test - the horizontal gaze nystagmus test. The defendant's performance on that test along with her other observations led Officer Weisbaum to believe that the defendant was under the influence of alcohol. She then administered a preliminary breath test at the scene. The result was a .16 grams of alcohol per 210 liters of breath. Officer Weisbaum then placed the defendant under arrest and placed him in the back of her police cruiser. An inventory search of the defendant's car at the scene revealed an open container of beer in the center console.
Officer Weisbaum then transported the defendant to the police station. She advised him that she was taking him to the station for processing and to administer a breath test.  [*4] They arrived at the police station at 11:35 p.m. There, Officer Weisbaum observed the defendant for 20 minutes, which is required procedure prior to the administration of the breath test. This observation period is necessary to assure the accuracy of the breath test results. During the observation period Officer Weisbaum observed the defendant for any coughing, belching, hiccupping - all factors which could influence the breath test results. While Officer Weisbaum was observing the defendant in preparation of the breath test, another officer engaged the defendant in the booking process. At the conclusion of the observation period, Officer Weisbaum administered the breath test using an Intoximeter unit. Two attempts were made, but the defendant did not provide a sufficient breath sample on either one. Officer Weisbaum believed that the defendant could provide a sufficient sample because he had done so at the scene of the traffic stop when she administered the preliminary breath test. She concluded that the defendant's failure to provide a sufficient sample was intentional and for the purpose of delay.
In accordance with standard U.S. Park Police procedures, Officer Weisbaum sought permission  [*5] from a supervising officer to transport the defendant to the hospital for a blood draw. After she obtained that permission, Officer Weisbaum advised the defendant that since he did not give a sufficient sample for the breath test, she was going to transport him to the hospital for a blood draw. The defendant advised her that he would not consent to a blood draw. Officer Weisbaum then transported the defendant to the hospital for a blood draw, which was accomplished without incident. Officer Weisbaum estimated that the blood draw was delayed approximately 30 minutes due to the defendant's failure to cooperate in the administration of the breath test at the station. The defendant was subsequently issued violation notices for several misdemeanors including (1) driving under the influence of alcohol and/or drugs, in violation of 36 C.F.R. §4.23(a)(1); (2) driving with an alcohol concentration in the operator's blood or breath of 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more of alcohol per 210 liters of breath, in violation of 36 C.F.R. §4.23(a)(2); and (3) refusal to submit to a chemical test for alcohol, in violation of 36 C.F.R. §4.23(c)(2).
At a suppression  [*6] hearing, Officer Weisbaum testified that she did not attempt to obtain a warrant prior to taking the defendant to the hospital for the blood draw because she did not believe she was legally required to do so. It was her understanding of the applicable implied consent law that a DWI suspect did not have the right to refuse to submit to a chemical test to determine blood-alcohol content. She testified that in the event of a refusal, U.S. Park Police procedures provided that the suspect could be transported to a hospital for a nonconsensual blood draw if a supervising officer first gave permission. She testified that she had never obtained a warrant in the past under these circumstances and that she followed the standard procedure in this case.
Detective Jose Bumbry of the U.S. Park Police confirmed that it was not the policy of the U.S. Park Police to obtain a warrant prior to the nonconsensual taking of a DWI suspect's blood. He also testified about the procedure developed between the U.S. Park Police and United States Attorney's Office in regard to obtaining a search and seizure warrant during non-business hours. He testified that the procedure could take from five to nine hours. Sergeant  [*7] Anthony Giannino of the U.S. Park Police testified that on April 17, 2013, after being notified of the McNeely decision, he contacted the chief United States Magistrate Judge in an effort to devise an expedited procedure to obtain warrants for blood draws. During the course of that same day, Sergeant Giannino and the chief Magistrate Judge devised such a procedure. In fact, the new procedure was first used later that same night. Since the new procedure was implemented, approximately 20 warrants for blood draws have been applied for and none have been declined.

As a general rule, a decision of the Supreme Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered. United States v. Johnson, 457 U.S. 537, 562, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982); see also Griffith v. Kentucky, 479 U.S. 314, 324, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). In Johnson, the Supreme Court held that the Fourth Amendment ruling announced in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L. Ed. 2d 639 (1980), prohibiting police from making a warrantless, nonconsensual entry into a suspect's home for the purpose of making a routine felony arrest, applied retroactively to a case pending on  [*8] direct appeal. Johnson, 457 U.S. at 554-55. Recently, in Davis v. United States, 131 S.Ct. 2419, 180 L. Ed. 2d 285 (2011), the Supreme Court applied its decision in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L. Ed. 2d 485 (2009), governing the warrantless search of an automobile incident to the arrest of its occupants, retroactively to a case pending on direct appeal. The present case falls in line with this Supreme Court precedent. The Court finds, therefore, that the decision in McNeely applies retroactively to the present case.

The Fourth Amendment provides "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized". In Schmerber v. California, 384 U.S. 757, 766-72, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), the Supreme Court recognized that the drawing of an individual's blood for evidentiary purposes implicates the Fourth Amendment, requiring that a warrant be obtained. Over the years, the Supreme Court has carved out exceptions to the Fourth Amendment's warrant  [*9] requirement, finding that in certain circumstances, a search and/or seizure is reasonable even when conducted without a warrant. Arguably, two of these exceptions apply to this case.

A search conducted pursuant to the valid consent of the individual is a well-recognized exception to the Fourth Amendment's warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). Under this exception, the court must determine, based upon the totality of the circumstances, whether consent was knowing and voluntary. United States v. Mendenhall, 446 U.S. 544, 557, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). Officer Weisbaum testified that when she advised the defendant that she was going to take him to the hospital for a blood draw because he would not give a sufficient breath sample, he explicitly refused to consent to the blood draw. Clearly, therefore, the warrantless blood draw cannot be upheld under the consent exception.1

1   The Government does not argue that the defendant's consent to the blood draw was derived from the implied consent law. Assuming arguendo that consent to the blood draw could be derived from the implied consent law, it is clear that the defendant withdrew that consent. See McNeely, 133 S.Ct. at 1566  [*10] recognizing that "[implied consent] laws impose significant consequences when a motorist withdraws consent".

Exigent Circumstances
The government asserts that there are exigent circumstances in this case which excused Officer Weisbaum from obtaining a warrant prior to the taking of the defendant's blood sample. Over the years, the Supreme Court has recognized an "exigent circumstances exception" to the Fourth Amendment's warrant requirement which applies 'when the exigencies of the situation' make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment. Kentucky v. King, 131 S.Ct. 1849, 1856, 179 L. Ed. 2d 865 (2011) citing Mincey v. Arizona, 437 U.S. 385, 394, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). The Supreme Court has found such exigent circumstances in situations involving an officer entering a home without a warrant to render assistance to an injured occupant or to protect an occupant from imminent injury, see Brigham City v. Stuart, 547 U.S. 398, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006), warrantless entry into a burning building, see Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978), and warrantless entry into a house to arrest the robber and search for weapons based on probable cause to believe that an armed  [*11] robber had entered the house a few minutes prior to entry. See Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L. Ed. 2d 782 (1967). Significantly, for the purposes of this case, the Supreme Court has also applied the exigent circumstances exception in cases where the police acted without a warrant to prevent the imminent destruction of evidence. See Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963).
The analysis of this issue begins with the Supreme Court's decision in Schmerber. In Schmerber, the defendant was charged with driving an automobile while under the influence of intoxicating liquor. He was arrested at the hospital where he was being treated for injuries sustained in an accident involving the vehicle he had been driving. At the direction of the police officer, a sample of the defendant's blood was taken by a physician at the hospital. A chemical analysis of the blood sample revealed an amount of alcohol in his blood at the time of the offense which indicated intoxication. At trial, the defendant objected to the admission of the blood test results on the ground that the blood had been withdrawn despite his refusal to consent to the test. The defendant raised several arguments, including violation of his Fourth Amendment  [*12] rights. His arguments were rejected by the Appellate Department of the California Superior Court which affirmed his conviction.
The Supreme Court also affirmed his conviction. Justice Brennan, writing for the majority, noted that a search warrant would ordinarily be required for an intrusion into the human body, such as the withdrawal of a person's blood. Schmerber, 384 U.S. at 769. He carved out an exception, however, where the police officer might reasonably believe he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence. Id. citing Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964). Significantly, Justice Brennan wrote

   We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case  [*13] was appropriate incident to petitioner's arrest.

Schmerber, 384 U.S. at 770-71 (emphasis added). Justice Brennan concluded, therefore, that there was no Fourth Amendment violation. He cautioned, however, that "we reach this judgment only on the facts of the present record." Id. at 772.2

2   Although Schmerber recognized the exception to the warrant requirement in terms of a search incident to an arrest, it has been widely considered as an application of the exigent circumstances exception. See United States v. Berry, 866 F.2d 887, 891 (6th Cir. 1989)
Since Schmerber was decided in 1966, courts have differed in the interpretation of its holding. Some jurisdictions have interpreted the decision in Schmerber broadly as holding that the natural dissipation of alcohol in the bloodstream established a per se exigency that sufficed on its own to justify an exception to the warrant requirement for the nonconsensual blood testing in drunk driving cases. Other jurisdictions afforded the decision a more limited interpretation. In an effort to resolve this split of authority, the Supreme Court granted certiorari in McNeely. McNeely, 133 S.Ct. at 1558 n.2.
In McNeely, on October 3, 2010 at 2:08 a.m.,  [*14] Corporal Mark Winder, a Missouri state highway patrolman, stopped the truck which Tyler McNeely was driving for speeding and repeatedly crossing the centerline. Corporal Winder observed signs of intoxication - bloodshot eyes, slurred speech, and the smell of alcohol on McNeely's breath. McNeely admitted that he had consumed "a couple of beers" at a bar. He was unsteady on his feet as he exited the truck. Corporal Winder asked McNeely to perform standard field-sobriety tests. McNeely performed poorly on the tests. McNeely declined to use a portable breath-test device to measure his blood-alcohol concentration. Corporal Winder then placed McNeely under arrest for driving while intoxicated. McNeely, 133 S.Ct. at 1556-57.
On the way to the police station, McNeely advised again that he would refuse to provide a breath sample. The officer thereupon changed course and transported McNeely to a nearby hospital for blood testing. At no time did Corporal Winder attempt to secure a warrant. At the hospital, the officer asked McNeely whether he would consent to a blood test. The officer, reading from the implied consent form, advised McNeely that under state law refusal to submit voluntarily to  [*15] the test would lead to the immediate revocation of his driver's license for one year and could be used against him at trial. McNeely refused to consent. The officer then directed a hospital lab technician to take a blood sample. The sample was collected at 2:35 a.m. Subsequent laboratory testing measured McNeely's blood-alcohol concentration at 0.154 percent, above the legal limit in Missouri of 0.08 percent. Id. at 1557.
Corporal Winder testified at trial that he did not attempt to secure a warrant because he believed that it was not legally necessary to obtain a warrant. He testified that in his more than 17 years of experience, he had obtained warrants when he wanted to test the blood of DWI suspects. He testified that he was "sure" that a prosecuting attorney was on call and had no reason to believe that a magistrate judge would have been unavailable. On this occasion, however, he did not even attempt to obtain a warrant because he believed that a recent change in Missouri's implied consent law obviated the need for officers to obtain a warrant before requiring DWI suspects to submit to nonconsensual blood tests. McNeely, 133 S.Ct. at 1567.
At trial, McNeely moved to suppress the  [*16] results of the blood test, arguing that the taking of his blood for testing without a warrant violated his rights under the Fourth Amendment. The trial court agreed with McNeely. On appeal, the Supreme Court of Missouri affirmed the decision of the trial court to suppress the results of the blood test. State v. McNeely, 358 S.W.3d. 65 (Mo. banc 2012). Relying on the Supreme Court's holding in Schmerber, the Supreme Court of Missouri concluded that McNeely's case was a routine DWI case, absent of any exigent circumstances which would allow a nonconsensual, warrantless blood draw. It held that the sole special fact that blood-alcohol levels dissipate after drinking ceases is not a per se exigency pursuant to Schmerber justifying an officer to order a blood test without obtaining a warrant from a neutral judge. Id. at 67. The Supreme Court of Missouri noted that the State could still proceed with the prosecution of McNeely based on other properly obtained evidence, but the results of the blood test would be suppressed. Id.
The United States Supreme Court affirmed the decision of the Supreme Court of Missouri. Writing for the majority, Justice Sotomayor held that in drunk-driving investigations,  [*17] the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. McNeely, 133 S.Ct. at 1568. Further, she held that the exigency must be determined case by case based on the totality of the circumstances. Id. In making its ruling, the Supreme Court clarified its prior decision in Schmerber. It held, in essence, that the natural metabolization of alcohol from the bloodstream does not present a per se exigency that will justify the nonconsensual taking of blood without a warrant in DWI cases. The natural metabolization of alcohol from the bloodstream may be one of the "special facts" recognized in Schmerber constituting the exigent circumstances necessary to uphold the validity of a nonconsensual, warrantless taking of blood in a DWI case. That fact, however, is not sufficient alone; additional "special facts" are required.
The government asserts that this case falls within the exigent circumstances exception. Specifically, it points to the 30 minute delay in the taking of the defendant's blood due to the defendant's failure to cooperate with the breath test at the station. The Court does  [*18] not find that said delay combined with the natural dissipation of blood-alcohol brings this case within the exigent circumstances exception. This is simply not a case where the exigencies of the situation were so compelling to excuse the need for a warrant. Officer Weisbaum described this incident as a "routine" DWI stop. While this alone does not mean a warrant is required, it is a "special fact" to be considered. See McNeely, 133 S.Ct. at 1568. Additionally, unlike Schmerber, time did not have to be taken to investigate an accident or attend to the suspect's personal injuries. There was nothing about the defendant's physical or mental condition, or behavior, which required the expenditure of time in addition to what would normally be expended in a routine DWI stop. Officer Weisbaum testified that it is common for defendants to at first agree to cooperate with the breath test and then not blow sufficiently, resulting in a failed test. The Court does not find that the totality of the circumstances present in this case constitute such an emergency to excuse the officer from obtaining a warrant prior to the taking of the defendant's blood. Given that the defendant did not consent to  [*19] the blood test, the Court finds the taking of his blood was in violation of the Fourth Amendment.

As a final matter, the Court must determine whether or not the results of the blood test should be suppressed at trial. Although the Fourth Amendment protects people against unreasonable searches and seizures, the Amendment "contains no provision expressly precluding the use of evidence obtained in violation of its commands." Arizona v. Evans, 514 U.S. 1, 9, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995). Nonetheless, the decisions of the Supreme Court have established an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial. Herring v. United States, 555 U.S. 135, 139, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009). The sole purpose of the exclusionary rule is to deter future Fourth Amendment violations. Davis v. United States, 131 S.Ct. 2419, 2426, 180 L. Ed. 2d 285 (2011). However, the exclusion of evidence does not automatically follow from the fact that a Fourth Amendment violation occurred. Id. at 2431. In fact, the Supreme Court has noted that the exclusionary rule should not be applied when evidence is obtained as a result of nonculpable, innocent police conduct, although in violation of Fourth Amendment rights. Id. at 2429.
The  [*20] Supreme Court recognized in Davis that as late as 1971 the application of the exclusionary rule was virtually automatic where a Fourth Amendment violation occurred. Over time, however, the Supreme Court "abandoned the old 'reflexive' application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits". Davis, 131 S.Ct. at 2427. "For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs." Id. The Court discussed the price society pays when evidence is excluded. It noted

   Exclusion exacts a heavy toll on both the judicial system and society at large...It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence... And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment.

Id. (citations omitted).
The Supreme Court also discussed the deterrence benefits of exclusion. It noted:

   the deterrence benefits of exclusion 'var[y] with the culpability of the law enforcement conduct' at issue....When the police exhibit 'deliberate,' 'reckless,' or 'grossly negligent' disregard for Fourth Amendment rights, the  [*21] deterrent value of exclusion is strong and tends to outweigh the resulting costs....But when the police act with an objectively 'reasonable good-faith belief' that their conduct is lawful,... or when their conduct involves only simple, 'isolated' negligence,... the 'deterrence rationale loses much of its force,' and exclusion cannot 'pay its way.'

Davis, 131 S.Ct. at 2427-28 (internal citations omitted)
In Davis, the Supreme Court applied the good faith exception to the exclusionary rule and affirmed the defendant's conviction. It noted that although the evidence was seized in violation of the defendant's Fourth Amendment rights, at the time of the seizure the police were acting in strict compliance with binding judicial precedent. The Court held "searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule." Id. at 2423-24.
The Supreme Court has applied this "good-faith" exception in a wide range of cases. See United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (exclusionary rule does not apply when the police conduct a search in objectively reasonable reliance on a warrant later held invalid); Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)  [*22] (good-faith exception extended to searches conducted in reasonable reliance on a subsequently invalidated statute); Arizona v. Evans, 514 U.S. 1, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995) (good-faith exception applied where police reasonably relied on erroneous information concerning an arrest warrant in a database maintained by judicial employees); Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009)(Evans extended to a case where police employees erred in maintaining records in a warrant database).
The facts of this case differ significantly with the facts of those cases where the Supreme Court has applied the good-faith exception to the exclusionary rule. Officer Weisbaum did not base her decision to compel the blood draw without a warrant on any erroneous information. She did not rely on any statute which was subsequently invalidated. She did not rely on any binding judicial precedent. Nevertheless, the government urges this Court to apply the good-faith exception to the exclusionary rule in this case. It argues that Officer Weisbaum acted in good faith and in accordance with U.S. Park Police procedures and the law as she understood them in directing the drawing of the defendant's blood without first obtaining a warrant.  [*23] As such, the government asserts that this is the type of "nonculpable, innocent police conduct" mentioned in Davis to which the good-faith exception should apply.
Traffic offenses occurring on the Baltimore - Washington Parkway are governed by 36 C.F.R. §§4.1 et seq. Section 4.23 addresses alcohol and/or drug related driving offenses. Subsection (c) provides that if a police officer has probable cause to believe that the operator of a vehicle is driving under the influence of alcohol and/or drugs, "the operator shall submit to one or more tests of the blood, breath, saliva or urine for the purpose of determining blood-alcohol and drug content if directed or requested to do so by the officer." This regulation does not require that the officer first obtain a warrant before directing the testing of the operator's blood, breath, saliva or urine. It does not require the existence of exigent circumstances. Further, it does not require the operator's express consent. In fact, subsection (c)(2) provides that the refusal by the operator to submit to a test is prohibited and that proof of refusal may be admissible in any related judicial proceeding.
The provisions of the federal implied consent  [*24] law, 18 U.S.C. §3118, also apply in this case. That statute provides:

   [w]hoever operates a motor vehicle in the special maritime and territorial jurisdiction of the United States consents thereby to a chemical test or tests of such person's blood, breath, or urine, if arrested for any offense arising from such person's driving while under the influence of a drug or alcohol in such jurisdiction . . . The test or tests shall be administered upon the request of a police officer having reasonable grounds to believe the person arrested to have been driving a motor vehicle... while under the influence of drugs or alcohol in violation of the laws of a State, territory, possession, or district.

Subsection b of the statute also provides for sanctions in the event a person refuses a test:
   [w]hoever...refuses to submit to such a test or tests, after having first been advised of the consequences of such refusal, shall be denied the privilege of operating a motor vehicle upon the special maritime and territorial jurisdiction of the United States during the period of a year commencing on the date of arrest ...and such refusal may be admitted into evidence....

Like 36 C.F.R. §4.23, the implied consent  [*25] law does not require the officer to first obtain a warrant before directing the testing of the individual's blood, breath or urine; nor does it require the driver's express consent or the existence of exigent circumstances.
The problem with the government's argument on this point is that the relevant facts in McNeely were not materially different from the facts of this case, and neither the Supreme Court of Missouri nor the Supreme Court of the United States applied the good-faith exception to save the blood test results from exclusion. Like Officer Weisbaum, Corporal Winder testified that he did not obtain a warrant before directing that McNeely's blood be drawn because he believed it was not legally necessary to do so. A change in Missouri's implied consent law prior to McNeely's arrest led Corporal Winder to that conclusion. The prior implied consent law in Missouri provided that if a person refused to submit to a test, "none shall be given." Section 577.041.1, RSMo. Supp. 2008. The law was amended prior to McNeely's arrest by the deletion of the phrase "none shall be given." Section 577.041.1, RSMo. Supp. 2010. A law enforcement officer in Missouri could easily conclude from the  [*26] deletion of that phrase that upon refusal he or she could require the testing of a DWI suspect's blood without consent and without a warrant. Nevertheless, the trial court in McNeely suppressed the results of the blood test, finding that the nonconsensual and warrantless blood draw was a violation of his Fourth Amendment rights. On review, both the Supreme Court of Missouri and the Supreme Court of the United States affirmed. None of these courts applied the good-faith exception to the exclusionary rule to save the blood test from exclusion at trial. Since the relevant facts of this case do not materially differ from those in McNeely on this issue, this Court must reach the same conclusion.
The government also asserts that Officer Weisbaum could have reasonably believed that the natural dissipation of blood-alcohol constituted an exigency that dispensed with the warrant requirement. Here, the government highlights cases from various jurisdictions which misinterpreted Schmerber as holding that in a DWI case, a warrant need not be obtained prior to taking the blood of a suspect who refuses to consent. The government fails to recognize, however, that courts in many other jurisdictions  [*27] have interpreted the holding in Schmerber correctly, holding that the natural dissipation of blood-alcohol was only one of the "special facts" upon which a finding of exigent circumstances could be based. Indeed, the Supreme Court recognized this split of authority and sought to resolve it by granting certiorari in McNeely. McNeely, 133 S.Ct. at 1558. Significantly, there is no binding judicial authority in the Fourth Circuit which holds that the natural dissipation of blood-alcohol presents a per se exigency justifying the nonconsensual, warrantless taking of a DWI suspects blood. As Justice Sotomayor stated in her concurring opinion in Davis: "when police decide to conduct a search or seizure in the absence of case law (or other authority) specifically sanctioning such action, exclusion of the evidence obtained may deter Fourth Amendment violations..." Davis, 131 S.Ct. at 2435 (Sotomayor, J. concurring).
Finally, the government argues that there is nothing to deter by suppression because procedures were adopted after McNeely was decided to safeguard the Fourth Amendment rights of DWI suspects. Indeed, Sergeant Giannino testified that on the same day that the decision in McNeely was  [*28] issued, a new policy was implemented pursuant to which an attempt to obtain a warrant would be made before the taking of a DWI suspect's blood. The new procedure was first utilized later the same night. He further testified that since the new procedure has been implemented, warrants have been requested in approximately 20 cases, and none have been declined. On this basis, the government argues that suppression of the defendant's blood test will not serve to deter future Fourth Amendment violations because the new procedure implemented in response to the McNeely decision will assure that future Fourth Amendment violations will be curtailed.
In support of its position, the government relies on the Fourth Cicuit case of United States v. Johnson, 410 F.3d 137 (4th Cir. 2005). In Johnson, the defendant was the driver of a car involved in an accident on the Baltimore-Washington Parkway. When the police arrived at the scene, the defendant was conscious but unresponsive. Suspecting that the defendant may be under the influence of an illegal substance, the police transported the defendant to the hospital for a blood draw. Pursuant to a contract between the United States Park Police and the Army's  [*29] Armed Forces Institute of Pathology, the toxicology analysis of the defendant's blood was performed at the Institute. The defendant's blood tested positive for PCP and a derivative of marijuana.
The defendant moved to suppress the results of the blood test on the ground that it was performed at the Armed Forces Institute in violation of the prohibition on military intervention in civilian law enforcement codified in the Posse Comitatus Act, 18 U.S.C. §1385. The district court denied the motion to suppress. On appeal, the Fourth Circuit affirmed. Although the Fourth Circuit could not find that the Act had been violated because the record did not establish that military personnel actually performed the blood test, it noted that even if it had found a violation of the Act, it would still affirm the district court's denial of the motion to suppress. The Court stated that as a general matter, the exclusionary rule is not a remedy for violations of the Act. It went on to state that should there be evidence of widespread and repeated violations of the Act, then it would consider applying the exclusionary rule in the future. Johnson, 410 F.3d at 149.
The government's reliance on Johnson is misplaced.  [*30] The defendant in Johnson did not contend that his blood was taken in violation of his Fourth Amendment rights,3 but rather violated the prohibition on military intervention in civilian law codified in the Posse Comitatus Act, 18 U.S.C. § 1385 (2000). As such, the Fourth Circuit did not review his request for suppression of his blood test in the context of a Fourth Amendment violation. If it had, the Fourth Circuit would likely have found no Fourth Amendment violation based on the exigent circumstances created by the accident and the defendant's physical and mental condition at the time. Johnson, 410 F.3d at 141-42. It would not have had to even consider the good-faith exception to the exclusionary rule. Further, while the exclusionary rule may not be a remedy for a violation of the Posse Comitatus Act as a general matter, it is well established that it is a remedy for a Fourth Amendment violation.

3   Johnson did assert that the warrantless search of his glove compartment violated his Fourth Amendment rights but that issue is not relevant here.
In all of the cases where courts have applied the good-faith exception to the exclusionary rule to save evidence obtained in violation of the Fourth Amendment  [*31] from exclusion, the focus of attention has been on the information or authority relied upon by law enforcement prior to and at the time of the warrantless search or seizure. The Court is not aware of any case where the good-faith exception has been applied on the basis of ex post facto remedial procedures implemented by law enforcement designed to curtail future Fourth Amendment violations.
In summary, the Court finds that the holding in McNeely applies retroactively to the facts of this case. The Court further finds that the defendant's blood was taken without his consent and that the government has not established exigent circumstances which would justify the taking of the defendant's blood without a warrant. Therefore, the Court finds that the taking of the defendant's blood in this case was in violation of his Fourth Amendment rights. Finally, the government has not established that the good-faith exception to the exclusionary rule should be applied in this case. The defendant's motion to suppress the results of the blood test is, therefore, granted.
Date: October 11, 2013
Thomas M. DiGirolamo

United States Magistrate Judge

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